If there is a guiding principle underlying family law, it is probably the best interests of the child standard. Almost every aspect of family law ultimately involves some analysis of the best interests of the minor children involved in the case. Recognizing that the stereotypical nuclear family is a myth, the legal system Colorado has long acknowledged the importance of psychological parents in the development of children. The simple truth is that children receive parenting from many people in their lives besides their biological or legal parents.
Guided by the best interests standard, the legal system tries to minimize the fall-out to children associated with divorce and other significant changes to children’s families. Enforcing the rights of certain non-parents to retain a connection with children after a divorce is one way to minimize the harm that divorces can cause to children. When adults divorce, children feel a loss. They lose their family unit, their step-parent, step-siblings, and their step-parents’ other family members. Allowing those third parties to retain a relationship with the children after a divorce can minimize the loss the children experience as a result of the divorce.
In Colorado, the legislature codified the rights of psychological parents by including statutory provisions that allow non-parents to seek parenting time in certain circumstances. See Colo. Rev. Stat. § 14-10-123(1)(b),(c).
Currently, the law is experiencing a shift away from the rights of psychological parents and towards the rights of biological parents. In 2000, the U.S. Supreme Court decided Troxel v. Granville, in which it held that biological parents have a fundamental liberty interest in the care, custody, and control of their children, and that awarding visitation rights to non-parents over the parents’ objection was subject to constitutional limits. Troxel v. Granville, 530 U.S. 57 (2000).
The Troxel case has had a ripple effect throughout the United States, changing the way many states have applied the best interests analysis in cases involving non-parents.
The problem with these decisions is that they shift the analysis from a consideration of what is in the child’s best interest to what the parents want. Effectively, it deprives children of any right to maintain normal relationships with the adults in their lives after the adults lose their ability to get along with one another.
The legislature allowed psychological parents to seek parenting time with children because it recognized that when adults do not get along with one another, children often suffer for it. The legislators created statutory protections for the relationship between children and their psychological parents because they knew that natural parents would be unlikely to preserve those relationships themselves.
This trend toward the reduction of psychological parents’ rights in favor of natural parents’ rights is really a reduction in children’s rights. Hopefully, we will start to see a swing back toward the recognition of psychological parents’ rights. In the meantime, we can only hope that adults remember that even bad spouses can be wonderful parents and that children should not lose their attachments to their step-families just because their parents and step-parents no longer get along.